Madras High Court
S. Alamelu vs The Superintending Engineer, South ... on 29 March, 1990
Equivalent citations: (1990)IILLJ96MAD
JUDGMENT Nainar Sundaram, J.
1. The petitioner in W.P. No. 11462 of 1985 is the appellant in this writ appeal. The respondent in the writ petition is the respondent in this writ appeal. We are referring to the parties as per their nomenclature in the writ petition for the sake of convenience. The petitioner was initially appointed by the Superintending Engineer, South Arcot Electricity System (South), Villupuram, to the post of Junior Assistant in the year 1970. Her service were regularised and subsequently in 1980 she was promoted as an Assistant. There is no dispute that the petitioner is a physically handicapped person in that she does not have her left forearm. She claims that she could not secure life partner on account of her physical handicap and sympathy flowed from her brother-in-law, namely, her younger sister's husband and he took her in marriage even though his marriage with the petitioner's younger sister was subsisting. This happened in the year 1973. On 1st July, 1985 a charge memorandum was issued to the petitioner putting forth the following charge :
"Tmty. S. Alamelu, then Assistant, Revenue Unit, Virdhachalam (now working at Revenue Unit, Perambalur, Trichy Electricity System/North) has married one Thiru A. Singaravelu, Assistant, who has a wife living, during 1973 without obtaining the prior permission of the Board. The above act constitutes misconduct as per Regulation 25(2) of Tamil Nadu Electricity Board Employees Conduct Regulations."
2. The petitioner came to this Court impeaching this charge memorandum by way of the writ petition. Three contentions were put forth before the learned single Judge, who heard and disposed of the writ petition. The first contention in substance was that there are Certified Standing Orders under the Industrial Employment (Standing Orders) Act, 20 of 1946, hereinafter referred to as the Act, and they do not set out any such misconduct and the Regulations cannot he invoked as done in the charge memorandum. The second contention was that if there is a conflict between the Certified Standing Orders and the Regulations, the former alone must prevail. The third contention was that if it is a question of obtaining a permission, that could be accorded even now. The learned single Judge did not countenance any of the three contentions, and as a result, dismissed the writ petition. This has obliged the petitioner to prefer this writ appeal.
3. Mr. K. Chandru, learned counsel for the petitioner, would primarily contend that to the parties the Act applies and pursuant to the provisions of the Act, Standing Orders got formulated and certified and they have settled and must be deemed to have settled all matters that are required to be settled by the provisions of the Act, which take in also acts and omissions, which would constitute misconduct; and a violation of the prescription of the Regulation as complained of and adumbrated in the charge memorandum is not one such misconduct and hence it is not permissible to have recourse to the Regulation to penalise the petitioner. In answer, Mr. K. P. H. Thulasiraman learned counsel for the respondent, would submit that when there is a Regulation, prohibiting the contracting of another marriage, as happened in the present case, without the prior permission, there could be disciplinary action treating such violation as a misconduct, and the absence of enumeration of that misconduct in the Certified Standing Orders would not abrogate such powers.
4. There is no dispute that the Act applies to the parties. If that is so, it is statutorily incumbent to formulate Standing Orders and get them certified under the Act. Pending such certification, the Model Standing Orders under the Act and the Rules framed thereunder shall govern. There is no dispute that there are Certified Standing Orders to govern the rights and obligations of parties in respect of matters covered by the Act and the Rules. They take in acts and omissions which would constitute misconduct. It is also not in dispute that violation of the Regulation as now complained of, has not been enumerated as a misconduct in the Certified Standing Orders. As to what is the sanctity to be annexed to the Act and the Standing Orders formulated and certified under it, and after them could any other Service Regulations prevail, in respect of matters required to be settled by the Act and the Rules, there are pronouncement of the highest Court in the land throwing light thereon.
In U.P. State Electricity Board v. Hari Shankar Jain (1978-II-LLJ-399) as to how far the Act should prevail over Section 79(c) of the Electricity (Supply) Act, 54 of 1948, pursuant to which alone the Regulations relied on by the respondent have come to be formulated, this is what has been observed (p 405) :
"We have already shown that the Industrial Establishment (Standing Orders) Act is a Special Act dealing with a specific subject, namely, the conditions of service, enumerated in the Schedule, of workmen in industrial establishments. It is impossible to conceive that Parliament sought to abrogate the provisions of the Industrial Establishment (Standing Orders) Act embodying as they do hard-won and previous rights of workmen and, prescribing as they do an elaborate procedure including a quasi-judicial determination, by a general, incidental provision like S. 79(c) of the Electricity Supply Act. It is obvious that Parliament did not have before it the Standing Orders Act when it passed the Electricity Supply Act when it Parliament never meant that the Standing Orders Act should stand pro tanto repealed by S. 79(c) of the Electricity Supply Act. We are clearly of the view that the provisions of the Standing Orders Act must prevail over S. 79(c) of the Electricity Supply Act, in regard to matters to which the Standing Orders Act applies."
5. In Glaxo Laboratories (I) Ltd. v. Labour Court, Meerut and others (1984-I-LLJ-16), the following observation deserve advertence to (pp 19-20, 23) :
"Every industrial establishment to which the Act applies is under a statutory obligation to draw up and submit to the Certifying Officer five copies of the draft standing orders for adoption in the industrial establishment (S. 3). Section 5 requires the Certifying Officer to forward the copy of the draft standing order to the trade union, if any, of the workmen, or where there is no such trade union, to the workmen in such manner as may be prescribed, together with a notice in the prescribed from requiring them to submit their objections, if any. Sub-s. (2) of S. 5 requires the Certifying Officer to decide, after hearing the representatives of the employer and the trade union or the workmen, whether or not any modification of or additional to the draft submitted by the employer is necessary. Such certified standing orders shall be filed by the Certifying Officer in a register in the prescribed from maintained for the purpose and the Certifying Officer shall furnish a copy thereof to any person applying therefor on payment of the prescribed fee. Section 12 excludes oral evidence having the effect of adding to or otherwise varying or contradicting standing orders as finally certified under the Act. Section 13C, which is in part pari materia with S. 11 A of the U.P. Industrial Disputes Act, 1947 confers jurisdiction on the Labour Court constituted under the Industrial Disputes Act 1947 to entertain an application for interpretation of a standing order certified under the Act. The scheme of the Act would show that the certified standing orders have more or less a statutory flavour. If that be so, ordinary canons of construction of statue would be attracted where a dispute arises about the construction or interpretation of a certified standing order.
No canon of construction of a statute is more firmly established than this that the purpose of interpretation is to give effect to the intention underlying the statute and therefore unless the grammatical construction leads to an absurdity, it is safe to give words their natural meaning because the framer is presumed to use the language which conveys the intention. If two constructions are possible, it is equally well established that the construction which advances the intention of the legislation, remedies the mischief to thwart with which it is enacted, be accepted.
In the days of laisez-faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was supreme lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted, as its long title shows, to require employers in industrial establishment to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief .........
The Act makes it obligatory to frame standing orders and get them certified. S. 3(2) requires the employers in an industrial establishment while preparing draft standing orders to make provision in such draft for every matter set out in the Schedule which may be applicable to the industrial establishment, and where model standing orders have been prescribed, shall be, so far as is practicable, in conformity with such model. Item 9 of the Schedule provides 'suspension or dismissal for misconduct, and acts or omissions which constitute misconduct'. It is, therefore, obligatory upon the employer to draw up with precision those acts of omission and commission which in his industrial establishment would constitute misconduct. Penalty is imposed for misconduct. The workmen must, therefore, know in advance which act or omission would constitute misconduct as to be visited with penalty. The statutory obligation is to prescribe with precision in the standing order all those acts of omission or commission which would constitute misconduct. In the face of the statutory provision it would be difficult to entertain submission that some other act or omission which may be misconduct though not provided for in the standing order would be punishable under Standing Order 23. Upon a harmonious construction, the expression 'misconduct in S.O. 23 must refer to those acts of omission or commission which constitute misconduct as enumerated in Standing Order 22 and none else."
In the above pronouncement, there was also reference to the ruling in Rohtak Hissar District Electricity Supply Co. Ltd. v. State of Uttar Pradesh and Others (1966-II-LLJ-330) that "everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is none the less a misconduct not strictly falling within the enumerated misconduct in the relevant standing order, but yet misconduct for the purpose of imposing penalty."
6. One of us (Nainar Sundaram, J) in S. V. Angappan and others v. The Tamilnadu Electricity Board, Rep., by its Secretary, Madras-2 (W.P. No. 5105 of 1980, order dated 6th January, 1987), adverted to the ratio of the Supreme Court in Glaxo Lab (I) Ltd. v. Labour Court, Meerut and others (supra) and opined that unless the transgression of any of the Regulations is also enumerated as misconduct in the Standing Orders, it will not attract disciplinary action in respect of such transgression. It is true Regulation 25(2) as such sets forth an embargo on a woman employee contracting a marriage with any person, who has a wife living, without first obtaining the permission of the Board. It is admitted that the Regulations do not by themselves say that a violation of Regulation 25(2) would amount to misconduct, attracting disciplinary action. Even if such a provision has been made, the Standing Orders under the Act having got formulated and certified and they having not provided for such a misconduct, the Regulations would not prevail and could not be invoked to take disciplinary action. That is the result of sanctity annexed to the Act and the rules, and the Standing Orders under them, and their overriding effect on other service Rules and Regulations. The learned single Judge, with due respect to him, in our view, has not appreciated the implications of the Certified Standing Orders under the Act and their overriding effect from a proper perspective. The learned single Judge took note of the observations in Shri Rasiklal Vaghjibhai Patel v. Ahmedabad Municipal Corporation and another (1985-I-LLJ-527) as saying that there could be an action either under the Service Regulations or Standing Orders. With due respect to the learned single Judge, we must point out that the said pronouncement has not at all dealt with the question of the overriding effect of the Certified Standing Orders under the Act over a Regulation of the present nature. The Supreme Court in that case, was discountenancing the view of the High Court that even if the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations, yet the employer can attribute what would otherwise per se be a misconduct through not enumerated and punish him for the same.
7. Our discussion of the proposition of law obliges us to interfere in writ appeal. Accordingly, this writ appeal is allowed; the order of the learned single Judge in W.P. No. 11462 of 1985 is set aside and that writ petition will stand allowed. We make no order as to costs.